Husbands claims that defendants violated his due process rights under the Fourteenth Amendment to the United States Constitution. In essence, Husbands alleges that he was not afforded certain procedural protections in the course of a Tier III hearing held concerning a misbehavior report that had been lodged against him by a corrections officer at Southport. Husbands also claims that the misbehavior report issued against him was false and was intended to cover-up an assault on Husbands by corrections officers and to prevent Husbands from seeking redress for the alleged assault. For the reasons discussed, infra, plaintiff's motion to amend his complaint is denied, defendants' motion for summary judgment is granted and the complaint is dismissed.

FACTS

Husbands' complaint stems from a misbehavior report, filed against him on June 1, 1991, by defendant corrections officer Blaine I. Lilac, III ("Lilac"). The misbehavior report charged Husbands with possession of contraband, that is a metal shank which was found under a locker in Husband's cell. A Tier III disciplinary hearing on the charge was held on June 7, 1991 before defendant hearing officer Larry Woodward ("Woodward"). Woodward found Husbands guilty of the charge and sentenced him to one year in the special housing unit ("SHU") with a loss of privileges and a one year loss of good time credits.

Husbands appealed the hearing disposition to defendant Thomas A. Coughlin III ("Coughlin"), Commissioner of Department of Corrections for the State of New York. The appeal was heard on August 29, 1991 by Donald Selsky, the Director of Special Housing and Inmate Disciplinary Programs (Selsky is not a named defendant), who reduced Husbands' sentence to six months in SHU and twelve months loss of good time credit.

Analysis of whether an amended complaint relates back to the original complaint must be considered in the context of the liberal relation back policy expressed in Fed.R.Civ.P. 15(c) as well as the rule that pro se complaints must be liberally construed. Villante v. Dept. Of Corrections of City of New York, 786 F.2d 516, 520 (2d Cir. 1986); See also Massop v. Coughlin, 770 F.2d 299, 301 (2d Cir. 1985)(per curiam).

In the present case, however, I need not decide whether the proposed amended complaint relates back to the original complaint. Even assuming that it does relate back, I will deny the motion to amend based on the futility of the proposed amendment. See John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994)("Undue delay and futility of the amendment, among other factors, are reasons to deny leave."). See also Nerney v. Valente & Sons Repair Shop, 66 F.3d 25, 28-29 (2d Cir. 1995).

Husbands seeks to amend his complaint to assert that his substantive rights under the First Amendment were violated because the disciplinary ticket issued by Lilac was false and given in order to prevent Husbands from petitioning the government for redress concerning the assault.

In the present case, Husbands has not claimed that he engaged in any protected First Amendment activity for which he was retaliated against by being issued the false disciplinary ticket. Rather, according to Husbands, he was issued the false disciplinary ticket so as to inhibit and prevent him from exercising his right in the future to seek redress for the assault. This claim must fail. The flaw in Husbands' argument is that he has completely failed to allege or show how the false disciplinary ticket prevented him from pursuing his First Amendment rights to seek redress from the government. Husbands has provided this Court with nothing to substantiate his claim that he was in any way prevented from pursuing redress for the alleged assault. He was not prevented from complaining to DOC officials. In fact, it appears from the record that Husbands did have a conversation with McClellan regarding Lilac's behavior. In response to the conversation, McClellan sent a memorandum to Husbands, dated August 22, 1991 advising that Husbands' complaint had been turned over to the Inspector General's Office for investigation. Furthermore, there is certainly no indication that Husbands was prevented from filing an action in federal court under § 1983 for the alleged assault.

Very simply, Husbands has not sufficiently alleged either that he engaged in any First Amendment activity for which he was subjected to retaliation or that he was in any way prevented from engaging in First Amendment activity.

Thus, even if Husbands is allowed to amend his complaint, his claim that Lilac issued him a false disciplinary ticket to prevent him from seeking redress for an earlier assault, in violation of the First Amendment, would be dismissed.

II. Defendants' Motion for Summary Judgment

A. Summary Judgment Standards

Summary judgment shall be granted if the pleadings and supplemental evidentiary materials "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). No genuine issue of material fact exists if "the record as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

To defeat summary judgment, the non-moving party must go beyond the pleadings and designate "specific facts showing that there is genuine issue for trial." Fed. R. Civ. P. 56(c). An argument that there are material factual issues which preclude a grant of summary judgment must be supported by concrete particulars. Dressler v. M.V. Sandpiper, 331 F.2d 130, 133 (2d Cir. 1964). Mere denials or general allegations without evidentiary support will not defeat a summary judgment motion. Engl v. Aetna Life Ins. Co., 139 F.2d 469, 473 (2d Cir. 1943).

To prevail in a § 1983 claim a prison inmate must demonstrate that he possessed a liberty or property interest protected by the United States Constitution or federal statutes and that, without due process, he was deprived of that interest. See Green v. Bauvi, 46 F.3d 189, 194 (2d Cir. 1995). A liberty interest may be implicated in appropriate circumstances by either a federal or state statute or by the United States Constitution itself. See Lee v. Coughlin, 902 F. Supp. 424, 430 (S.D.N.Y. 1995) ("liberty interests protected by the Due Process clause may arise from either the Due Process clause itself or from the laws of the states") citing Sandin, 115 S. Ct. At 2300.

In Sandin, the United States Supreme Court expressly determined that neither Hawaii state regulations nor the Due Process clause created a liberty interest for a prisoner in avoiding thirty days' disciplinary confinement in SHU. The Court found that state regulations can create a liberty interest only where a restraint imposes "atypical and significant hardship on an inmate in relation to the ordinary incidents of prison life." Sandin, supra at 2300. The prisoner's segregated confinement, according to the Court, did not present the type of atypical, significant deprivation in which a state might create such a liberty interest.

In the opinion's final paragraph, the Supreme Court concluded that "neither the Hawaii prison regulation in question, nor the Due Process clause itself, afforded [the plaintiff] a protected liberty interest that would entitle him to the procedural protections set forth in Wolff3" Sandin, supra at 2301.

The present case is indistinguishable from Sandin. "Under New York prison regulations, inmates can be placed in SHU for disciplinary confinement, detention, administrative segregation, protective custody, keeplock confinement, and 'for any other reason, with the approval of the deputy commissioner for facility operations.'" Carter v. Carriero, 905 F. Supp. 99, 103 (W.D.N.Y. 1995), citing 7 N.Y.C.R.R. § 301.1-.7. Like the prisoner in Sandin, Husbands was not subjected to punishment that imposed "atypical and significant hardship" in relation to the ordinary incidents of prison life. Therefore, Husbands' punishment did not implicate a liberty interest under the Fourteenth Amendment and his claim must be dismissed. See also Lee, 902 F. Supp. at 430 (No liberty interest implicated by the Due Process clause in prison context unless confinement is "qualitatively different" from typical punishment and has "stigmatizing consequences"); Uzzell v. Scully, 893 F. Supp. 259 (S.D.N.Y. 1995) (no liberty interest in avoiding keeplock confinement because it is not atypical and significant).

Husbands' motion to amend his complaint, filed May 23, 1996, is DENIED. Defendants' motion for summary judgment, (Dkt. No. 20), is GRANTED. The complaint is dismissed in its entirety.

IT IS SO ORDERED.

DAVID G. LARIMER

CHIEF JUDGE

UNITED STATES DISTRICT COURT

Dated: Rochester, New York

March 26, 1997.

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